SUBSCRIBER SERVICES AGREEMENT
THIS SUBSCRIBER SERVICES AGREEMENT is entered into between Ygnition
Networks, with offices at 565 Andover Park West, Suite 201, Seattle,
Washington 98188, (hereinafter referred to as "Ygnition Networks"), and the
individual subscriber named below (hereinafter "Subscriber") to provide
certain Internet access system ("IAS") services to the Subscriber's
residential apartment/condominium home described below (said residential
apartment/condominium home hereinafter referred to as the "Property") under
the following terms and conditions:
SECTION 1
Services Provided
1.1 Use of IAS, E-Mail Storage. Subject to the compliance by Subscriber
with all Terms and Conditions of this Agreement, and in exchange for
recurring payment of subscription fees, Subscriber shall have the right to
use the IAS for accessing the Internet, and for sending and receiving
e-mail. Subscriber shall have the right to store up to and including ten
Megabytes (10 MB) of e-mail data on the Ygnition Networks server.
Subscriber shall be automatically charged a monthly storage for each
Megabyte of data in excess of the Free Storage Amount, as described in
Section 3.1 (c) below.
1.2 Technical Support. During the term of this Agreement Ygnition Networks
shall provide technical support via telephone to Subscriber a minimum of 40
Hours a week, 5 days a week. The Technical Support Phone number is
1-866-876-3278.
1.3 Scope of Services. The term "Services" as used throughout this
Agreement shall include all services and equipment provided by or through
Ygnition Networks, including without limitation, Internet access, e-mail
storage, technical support and the licensing of Ygnition Networks or third
party software.
1.4 Limitation & Exclusivity of Services. With respect to any software and
documentation provided under this Agreement, such software and documentation
are provided to Subscriber for use only (i) with the Internet access service
offered by Ygnition Networks in conjunction with the distribution of such
software and documentation and (ii) in accordance with the terms of this
Agreement. No right or license is granted to use the software or
documentation with any other Internet access or other network service.
Subscriber expressly acknowledges that Ygnition Networks reserves and shall
have the right to discontinue any and all Services to Subscriber at any
time, without prior notice or liability, for any conduct which Ygnition
Networks, in its sole and unfettered discretion, determines to violate the
Agreement or is otherwise harmful to Ygnition Networks interests or the
interest of others.
1.5 Virus, File-Sharing, Spamming, and Bandwidth Abuse: The IAS is a
community-based service in which the quality of service level is adversely
impacted by the virus attacks, spamming, uncontrolled peer-to-peer file
sharing, and running servers on the network. In order to preserve the value
of the network Ygnition has implemented the following requirements and
procedures. Subscribers that exceed three warnings regarding abuse may be
subjected to a re-connect fee. See Section 3, Payments of Costs and Fees.
(a) Virus protection: Subscriber is required and agrees, at its sole cost
and expense, to procure and maintain anti-virus software and keep it current
with the latest updates. In addition Subscriber is required to maintain the
most recent security patches for its computer's operating system. Violation
of this policy is grounds for immediate termination of network access
rights. To enhance virus protection, Ygnition may also perform basic
filtering of port 135(RPC) and some netbios ports.
(b) Peer-to-peer file sharing: Ygnition Networks does not support
unrestricted peer-to-peer file sharing and related downloads. File-sharing
programs, at the sole discretion of Ygnition Networks, may be limited in
order to preserve the capacity of the network. Service to Subscribers that
continue to use an inordinate level of bandwidth due to peer-to-peer file
sharing and related downloads after being informed by Ygnition Networks of
the unacceptable usage, may be terminated without notice.
(c) Spamming: Spamming (the transmission of unsolicited email) is not an
acceptable use of the Ygnition network and violation will result in
immediate termination of network access.
SECTION 2
Subscriber's Obligations
2.1 Software and Hardware. Subscriber shall, at its sole cost and expense,
procure and maintain the hardware and software for Subscriber's personal
computers and related equipment ("Subscriber's PCs") so that Subscriber's
PCs are compatible with the LAN ("Local Area Network"), which Ygnition
Networks has installed, and so that Subscriber's PCs are compatible with the
IAS. In addition, Subscriber shall be responsible for maintaining the
security of its account, password, files, network and user access, and any
information Subscriber might disseminate through Ygnition Networks Services
or other Internet services, and for all use of Subscriber's account with
Ygnition Networks with or without Subscriber's knowledge or consent.
Subscriber is required, at its sole cost and expense, to procure and
maintain anti-virus software and keep it current with the latest updates.
In addition Subscriber is required to maintain the most recent security
patches for its computer's operating system. Violation of this policy is
grounds for immediate termination of network access rights.
2.2 Use and Conduct. Subscriber agrees to use the IAS in complete
compliance with the Terms and Conditions set forth in this Agreement.
Subscriber acknowledges that failure to comply with the Terms and Conditions
shall give rise to the right of either Property and/or Ygnition Networks to
unilaterally terminate Subscriber's connection with the IAS, pursuant to the
provisions of Section 4 below. In addition, subscriber expressly consents to
Ygnition Networks right to download a Property specific web site onto
Subscriber's PC Systems in utilization of the Services provided hereunder.
2.3 Representations and Warranties. Subscriber represents, warrants,
covenants and agrees that he/she will not engage in any of the following
types of conduct ("Prohibited Use and/or Activities") in utilizing the IAS:
(a) Transmitting, receiving, displaying, printing, forwarding, or
otherwise disseminating material that is fraudulent, illegal, harassing,
offensive, embarrassing, sexually explicit, obscene, threatening,
defamatory, or constitutes illegal content of any kind (to the extent
permitted by law);
(b) Uploading, transmitting, receiving, displaying, printing, forwarding
or otherwise disseminating material, content, communication, information or
software that contains a virus, trojan horse, self replicating code, or
other harmful component;
(c) Uploading, transmitting, receiving, displaying, printing, forwarding
or otherwise disseminating material, content, communication, information or
software which is protected by patent, copyright, trademark, rights of
privacy, or other proprietary rights without first obtaining any necessary
permission of the owner of such rights;
(d) Utilizing the IAS to commit a crime, or to plan, encourage, aid,
abet, help or assist others to commit a crime, give rise to civil liability,
or otherwise violate any local, state, national or international law,
including without limitation, the U.S. export control laws and regulations;
(e) Utilizing the IAS in such a manner so as to violate the terms and
conditions, operating rules or security requirements of any other computer
network or interactive service;
(f) Utilizing the IAS to flood a use group or other online system with
unsolicited, inappropriate or unwanted e-mail ("Spam");
(g) Utilizing the IAS to send an electronic message or file via the
Internet in such a manner so as to make the message or file to appear to
originate from a false source, such as another Internet user or domain
altogether ("Spoofing"); and
(h) Utilizing the IAS to host web servers, proxy servers, or any other
Internet server.
Subscriber agrees, at its sole cost and expense, to procure and maintain
anti-virus software and keep it current with the latest updates. In
addition Subscriber is required to maintain the most recent security patches
for its computer's operating system.
2.4 Indemnification. Subscriber agrees to defend (by counsel acceptable to
Ygnition Networks), indemnify and hold harmless Ygnition Networks and their
affiliated companies, licensees and independent content providers from all
liabilities, claims and expenses, including attorneys' fees, arising from
breach, by Subscriber, of the Subscriber Services Agreement or from use of,
or in connection with, the transmission by or through the IAS of any
Content, including any breach of Subscriber's security on the IAS, other
than those caused by the gross negligence or willful misconduct of Ygnition
Networks, or its employees. Nothing in this Agreement shall interfere with
the right of Ygnition Networks to retain independent counsel with respect to
any such claims or proceedings, at the sole expense of Ygnition Networks,
and in said event, the obligations of Subscriber shall not be amended or
changed thereby, but shall continue as herein above provided.
SECTION 3
Payment of Costs and Fees
3.1 Payment of fees. Subscriber agrees to allow Ygnition Networks to
charge the credit card specified by Subscriber, the following amounts:
(a) Set-Up Fees: The costs for the set-up of Subscriber's IAS,
establishing the connection from Subscriber's PC to the LAN, and
establishing an Internet service for the Subscriber, shall be charged as
shown below for each of Subscriber's PCs. Subscriber acknowledges that this
fee is non-refundable.
(b) Use Charges: Subscriber shall pay for its use of the IAS pursuant
to schedule of fees outlined below. Use Charges shall not be modified
during the Term. IAS Use Charges for Subscribers who are on a one-month
renewable Term may be changed, upon thirty (30) days advance notice to
Subscriber; see Section 4A., below for termination rights upon such event.
(c) E-Mail Storage Charge: Subscriber shall pay Storage Charges of $
2.00 per Megabyte per month, in excess of the Free Storage Amount, (as
described in Section 1.1, above.)
(d) Re-connect Fees: In the event that Subscribers credit card cannot
be charged for any reason, Ygnition Networks will disable the connection
between Subscriber's PCs and the IAS, then Subscriber shall be required to
pay a re-connect fee up to $49.95. Termination of the service does not
eliminate or reduce the obligation of Subscriber to pay all sums due
hereunder incurred prior to termination.
(e) Unreturned Equipment: Subscriber agrees to pay fees defined in
paragraph 4.1 (c) below, for equipment not returned within 10 days from the
time of service disconnection.
(f) Multiple Abuse Reactivation Fee: A re-connect fee of $25.00 may
apply when any more than three abuse tickets have been opened against the
same subscriber.
SECTION 4
Termination
4.1 Term and Termination for Breach
(a) Term: The term of this agreement shall be month-to-month, subject to
a 30-day termination notice.
(b) Subscriber is billed a month in advance for usage: Unless cancelled
thirty (30) days prior to the end of a term, the original term of service
shall be renewed for an additional one (l) month term in accordance with the
terms and conditions of this agreement.
(c) By Subscriber: If Subscriber chooses to terminate subscription to the
IAS, Subscriber must submit cancellation of service thirty (30) days prior
to the end of a term. Any Ygnition Networks equipment and/or cables must be
returned to Ygnition Networks, at the subscribers expense, to 565 Andover
Park West, Suite 201, Seattle, Washington 98188 within ten (10) days of
service termination or Subscriber agrees to pay an unreturned equipment fee
of $175.00.
(d) By Ygnition Networks: In the event that Subscriber violates the Terms
and Conditions of this Agreement, Ygnition Networks shall give Subscriber
one (1) warning of such violation; upon the second occurrence of any (not
necessarily the same) violation, Ygnition Networks shall have the right, on
one (1) hour notice to Subscriber, to terminate Subscriber's access to the
IAS. Any Ygnition Networks equipment and/or cables, must be returned to
Ygnition Networks immediately.
(e) Ygnition Networks reserves the right to terminate any subscriber with
one (1) hour of notice, except in the case of a virus or spamming which
shall be immediate, that Ygnition Networks at its sole discretion,
determines to be an abuser to the IAS.
(f) Reconciliation of Accounts Upon Termination: In the event that
Subscriber's use of the IAS is terminated for any reason, no refund of any
fees or credits will be granted. Upon termination, Subscriber shall remain
obligated to pay all charges due hereunder up to and including the date of
termination. In such event, Subscriber shall have no right to be
re-connected, except on terms acceptable to Ygnition Networks in their sole
discretion.
SECTION 5
Ygnition Networks Liability
5.1 Limited Warranty. Ygnition Networks or its subcontractors, shall
perform all work for Subscriber under this Agreement in a good and
workmanship-like manner by qualified personnel, in accordance with
manufacturers and/or suppliers standards and specifications, both respecting
materials to be used and manner of installation. Subscriber expressly agrees
and acknowledges that use of the IAS, e-mail, and the Internet, are at
Subscriber's sole risk, and are provided on an "as is" and "as available"
basis without warranties of any kind, either express or implied.
5.2 No Other Warranties. TO THE EXTENT PERMITTED BY LAW, Ygnition Networks
DISCLAIMS ALL OTHER WARRANTIES ON THE IAS, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR
PURPOSE. Ygnition Networks, ITS EMPLOYEES, AGENTS, SUPPLIERS, VENDORS AND
DISTRIBUTORS MAKE NO OTHER WARRANY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
REGARDING THE QUALITY, ACCURACY, OR VALIDITY OF THE DATA AND/OR INFORMATION
AVAILABLE ON THE IAS OR SERVICES OR RESIDING ON OR PASSING THROUGH ITS
INTERCONNECTING NETWORKS, OR THAT Ygnition Networks SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE. THE DURATION OF ANY STATUTORILY REQUIRED
WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. THIS
LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, DEPENDING UPON WHERE YOU
LIVE. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY
TO COUNTRY.
5.3 Exclusive Remedy. Subscriber's exclusive remedy for breach of this
Agreement by Ygnition Networks, shall be, at Ygnition Networks option,
either
(a) The repair or replacement of the IAS product that does not meet
Ygnition Networks Limited Warranty; or
(b) A refund of the subscription fees Subscriber has paid Ygnition
Networks under this Agreement over the last twelve (12) months.
5.4 Disclaimer of Consequential Damages. UNDER NO CIRCUMSTANCES SHALL
Ygnition Networks BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES
WHATSOEVER ARISING OUT OF THE USE OF THE IAS PRODUCT OR SERVICES OR
INABILITY TO USE THE IAS PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER
FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF Ygnition Networks HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND
COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO
YOU.
5.5 Limitation on Liability. Ygnition Networks LIABILITY SHALL IN
NO EVENT EXCEED THE LESSER OF ONE THOUSAND DOLLARS ($1,000) OR THE LAST
TWELVE (12) MONTHS OF SUBSCRIPTION FEES PAID BY SUBSCRIBER TO Ygnition
Networks HEREUNDER.
SECTION 6
Governing Law and Dispute Resolution
6.1 Arbitration. The parties agree to submit any dispute arising out of or
in connection with this Agreement to binding arbitration in Contra Costa
County, Washington, before the American Arbitration Association pursuant to
the provisions of this Section 6.1, and, to the extent not inconsistent with
this Section 6.1, the rules of the American Arbitration Association. The
parties agree that such arbitration will be in lieu of either party's rights
to assert any claim, demand or suit in any court action, (provided that
either party may elect either binding arbitration or a court action with
respect to obtaining injunctive relief to terminate the violation by the
other party of such party's proprietary rights, including without limitation
any trade secrets, copyrights or trademarks). Any arbitration shall be
final and binding and the arbitrator's order will be enforceable in any
court of competent jurisdiction.
6.2 Governing Law; Venue. The validity, construction, and performance of
this Agreement shall be governed by the laws of the State of Washington,
including its conflict of law principles, and all claims and/or lawsuits in
connection with this agreement must be brought in King County, State of
Washington.
SECTION 7
Miscellaneous Provisions
7.1 Waiver. The waiver or failure of either party to exercise in any
respect any right provided for in the Subscriber Services Agreement shall
not be deemed a waiver of any further right.
7.2 Severability. If any provision shall be invalid or unenforceable, the
remaining provisions shall not be affected thereby, and every provision
hereof shall be valid and enforceable to the fullest extent permitted by
law.
7.3 Entire Agreement. This Subscriber Services Agreement is the entire
agreement between the parties with respect to the IAS. Nothing may be
amended except by an agreement in writing signed by the parties hereto or
their respective successors in interest. The rights and obligations of
Subscriber shall be governed by and construed in accordance with the laws of
the State of Washington.
7.4 Force Majeure. Neither party shall be held responsible for damages
caused by any delay or default due to any contingency beyond its control
preventing or interfering with performance hereunder.
Miscellaneous Information:
Subscriber understands that the installation performed by Ygnition Networks
is a one-time service and that the installation is considered completed when
a connection is made to the Internet from the subscribers computer. In rare
circumstances, a computer cannot connect despite the best efforts of the
Ygnition Networks technician. In such a case, the installation will be
considered complete if the technician can demonstrate a connection with
their computer. The technician will make recommendations to remedy the
problem.
Any additional on-site installation activity will be charged at the rate of
$75 per hour with a $125 minimum. Telephone support directly related to
re-installation procedures will be limited to 15 minutes.
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